Zoning Board of Adjustment
October 17, 2011
Approved November 14, 2011
Members Present: Katheryn Holmes, Chair; Peter Fichter, Vice-Chair; Harry Seidel, Sue Russell, Members; Steve Russell, Alternate.
Ms. Holmes called the meeting to order at 7:03 p.m.
Ms. Holmes appointed Mr. Russell as a voting member for this meeting.
ADMINISTRATIVE BUSINESS
Ms. Holmes noted that a letter of opposition to the CAP Newbury Elderly Housing project was received from Ed Rehor, 47 Newbury Heights Road, Newbury. She said if any member was interested in reviewing the letter they may do so at the end of the meeting.
Minutes
The Board reviewed the minutes of July 11, 2011 and made a correction.
Mr. Fichter made a motion to accept the minutes of July 11, 2011 as corrected. Mr. Russell seconded the motion. All in favor.
Notice is herby given that the Newbury Zoning Board of Adjustment will conduct a public hearing on the following proposal on Monday, October 17, 2011 at the Town Office Building at 937 Route 103 in Newbury, NH:
7:15 p.m., Ashworth-Hafer Trust, for property located at 195 Mountain Road, Newbury, NH, will seek a Special Exception as provided for in 5.4.1 to permit the following: operate a pet care facility out of residence. Newbury Tax Map 022-127-464.
Ms. Holmes introduced the Board and reviewed the hearing process with the applicant and members of the public.
Susan Hankin-Burke, Esq., agent, presented to the Board.
Ms. Hankin-Burke said the applicants seek to operate a cottage industry in a residential zone to provide doggie day care, limited dog and cat overnight care and dog training. No construction is being proposed as approximately 1,270 square feet of the 3,291 square foot residence would be used as the care facility and exercise and recreation of the animals can occur within the two existing penned areas behind the house. The existing free-standing barn/4 car garage will be used for the dog training. A fenced area will be added adjacent to the barn/garage structure. None of the animals will be housed out of doors. The concept is that your pet will be taken care of in a home setting, not in a kennel. Obviously, dogs will be screened to determine whether the animals are compatible with the setting and operators. Doggie day care
will be offered Monday through Friday during the summer months, and Monday through Sunday during the ski season. Hours of operation will be 7:30 a.m. to 5:30 p.m. Monday through Friday and 9:00 a.m. to 5:00 p.m. Saturday and Sunday. The applicants plan to have not more than 10 dogs at any time. Training services (dog obedience) will be offered for classes of 4 to 6 dogs, one hour in duration Monday through Friday until 8:00 p.m. Some training will be offered on Saturdays as well.
Ms. Hankin-Burke said the day care portion of the business would have a maximum number of 10 dogs, the training facility would have a maximum of four to six dogs, and the overnight dog care would not exceed five dogs. She said the maximum number of cats housed overnight would be eight.
Mr. Fichter asked how close the fenced in area is to the Andrew Brook. Ms. Hankin-Burke said she didn’t know but added that the dog poop would be removed promptly from the fenced in area via scooping, bagging and disposed of so there would be no potential contamination of the Andrew Brook.
There being no further questions from the Board, Ms. Hankin-Burke addressed Articles 16.6.1 – 16.6.5 of the zoning ordinance:
16.6.1 That the use will not be detrimental to the character or enjoyment of the neighborhood by reason of undue variation or undue violation of the character of the neighborhood because: Individuals often maintain pets, including horses and other animals in residential neighborhoods. In this instance, the subject property is sizable and surrounded by Society for the protection of NH Forests land. The closest neighbors are approximately 500 feet away in on direction, and approximately 1,900 feet away in the direction toward Route 103. The pets will reside inside the residence, hence there will be no detriment as the character and enjoyment of the existing neighborhood will be unchanged. The number of cars would not exceed that of a busy day care business – seven.
16.6.2 That the use will not be injurious, noxious, or offensive and thus detrimental to the neighborhood because: No pets will be allowed to stray about the neighborhood. Dogs will not be left outside or alone, unattended, thus barking will be at a minimum. Waste management will be contained to specific fenced areas and shall be collected and disposed of consistent with the practices of animal shelters and dog kennels within the state of NH. In fact, pet waste disposal has been established for both Fisherfield and Bald Sunapee recreation areas.
There was discussion concerning the maximum number of animals on the premises at any one time.
16.6.3 That the use will not be contrary to the public health, safety or welfare by reason of undue traffic congestion or hazards, undue risk to life and property, unsanitary or unhealthful emissions or waste disposal, or similar adverse causes or conditions because: As aforementioned, pet waste will be bagged and disposed of consistent with the standard as established within the state of NH. Given the restricted number of dogs for an in home care facility as proposed. Minimal noise and traffic congestion will not be contrary to the public’s health, safety or welfare. The existing circular and large driveway allows adequate room for parking in front of the garage/barn or house and no car will need to back out onto Mountain Road. The area of the road where the residence is located is straight and flat,
thus a safe place for cars to pull in and out, even if limited to no more than approximately 7 at any one time.
16.6.4 The location and size of the use, the nature and intensity of the operations involved, the size of the site in relation to the proposed use and the location of the site with respect to the existing or future street giving access to it, shall be such that it will be in harmony with the neighborhood. The location nature and height of buildings, walls, and fences will not discourage the appropriate development and use of the adjacent land and buildings or impair the value thereof. In this regard, the Board may impose the following safeguards in addition to the applicable requirements of this Ordinance, including, but not limited to the following:
16.6.4.1 Front, side or rear setbacks greater than the minimum requirements of this Ordinance;
16.6.4.2 Screening of parking areas or other parts of the premises from adjoining premises or from the street by walls, fences, planting or other devices;
16.6.4.3 Footprint or lot coverage;
16.6.4.4 Modification of the exterior features or appearance of the building;
16.6.4.5 Limitation of size, number of occupants, method or time of operation or extent of facilities;
16.6.4.6 Regulation of number, design, and location of drives or other traffic features;
16.6.4.7 Off street parking or loading spaces beyond the minimum requirements; or
16.6.4.8 Control of the number, size, and location of lighting and signs.
It is difficult to imagine a site more conducive to the proposed use. The lot is approximately 14.7 acres, the residence is large and the existing garage/barn is substantial in size to allow for an indoor training area. The barn/garage structure is approximately 120 feet from the westerly boundary of the property. The residence and fenced areas are approximately 800 feet from the easterly boundary of the property. At any one time no more than six cars are anticipated and adequate parking along the barn structure exists. The driveway circles in front of the house and past the garage , thus no cars will ever have to back out of the driveway. An aerial view of the property demonstrates that there are no existing residences close by. Behind the property is land owned by the Society for the Protection of NH
Forests, the lot to the east of the subject property is just under 8 acres, and the undeveloped lot to the west is approximately 67 acres. Rather than a sign, the applicant is considering erecting a nautical flag pole that will have the U.S. flag on the main mast and a custom business flag on one o the arms in the center of the grassed area surrounded by the driveway. Lighting of the flag pole is being considered, as is required if the American flag is flying at night.
Mr. Fichter asked if there would be any other non-occupant resident. Ms. Hankin-Burke said no.
Mr. Fichter asked if the waste collection is controlled by state regulations. Emily Stewart, with the Upper Valley Humane Society in Lebanon, NH, said the state does not regulate this area. However, she said animal shelters or kennels scoop the waste, bag it and dispose of it at the local dump.
Mr. Seidel questioned the effectiveness of the fencing in keeping dogs contained. Ms. Hankin-Burke said the fencing is higher than the standard height for yard containment of dogs.
16.6.5 Operations in connection with such a use shall not be more objectionable to nearby properties by reason of noise, fumes, odor, or vibration, than would be the operation of any permitted uses in this district which are not subject to special exception procedures because: The facility, as it exists, is appropriate and adequate for the proper operation of an in-home care provider for dogs and cats including adequate fenced play areas and an indoor area, in the garage/barn to hold training classes. The use complies with all applicable regulations of the district in which it is located.
At Ms. Holmes’ request, the Recording Secretary read into the record the following printed and hand-delivered email regarding this application:
October 16, 2011,
Dear Members of the Newbury Zoning Board,
I am writing to express my full support for the application of the Ashworth-Hafer Trust for a Special Exception to permit a cottage industry in a residential zone to provide doggie day care, overnight car[e] and dog training. I have used this facility for my dog on a number of occasions and find the quality of care and cleanliness of the facility impeccable. This facility is meeting a need for those of us who are pet owners in Newbury for safe and reliable care of our pets. I urge you to approve this application for a Special Exception.
Sincerely,
Eudora Shaw, 249 Gillingham Drive, Newbury, NH 03255
There being no further questions from the Board, Ms. Holmes opened the public portion of the hearing.
Scott Nelson, Mountain Road, Newbury, questioned how the business will be regulated in terms of how many dogs will be allowed on the premises. He asked who in the town will oversee this. Ms. Holmes said that is not in the purview of the ZBA.
Mr. Nelson noted that the business is currently being run without a special exception and he said that constitutes a breach of trust. He added that he can hear dogs barking from that property. He questioned how far the fenced area is from the Andrew Brook. He added that the proposed business is located close to Mountain Road and does not utilize the rest of the parcel.
Tim Therrien, 223 Mountain Road, Newbury, expressed concern over the values of surrounding properties (Paragraph 16.7.5) and said this business will reduce the value of same. He said the peace and quiet of the neighborhood will be compromised and the dogs barking will be a noise nuisance. He noted that the ordinance also contains a nuisance provision. He questioned how just the two applicants will be able to keep up to 10 dogs from barking.
Ms. Hankin-Burke said the dogs will be fully supervised when outside and the overnight dogs will be housed inside the residence under full supervision.
Mr. Therrien noted that there is a state law governing noise nuisances, particularly dogs barking, that results in ticketing and applicable fines. Ms. Hankin-Burke said that state law will control any problems concerning sustained dog barking.
Debbie Nielson, a Newbury resident, referred to a past application presented by the applicants that requested permission for 60 to 75 dogs. She questioned the truthfulness regarding the number of animals presented in this application. She added that there are newspaper advertisements for the business. She said the Code Enforcement Officer contacted Ms. Ashworth in April and told her a special exception was needed to run a business. Ms. Nielson requested that the application be continued to allow for more research into the parameters of the proposed business.
Barbara Freeman, 434 Old Post Road, Newbury, spoke in favor of the application. She noted her nine year tenure on the Newbury Planning Board and said she is well aware of the purpose of the regulations. She said the town’s Master Plan as well as the goals of the Newbury residents when they were surveyed was to support small businesses in the neighborhoods. She added that the reason for special exception is to allow small businesses to occur throughout the community with the land use board’s review. She added that the facilities on the property will limit how many dogs can be on the property at one time. She said the additional land and topography will act as a buffer. She said it is not uncommon in Newbury for a fledgling business to operate to see if it works
before formalizing it. She added that the integrity of the applicants is impeccable.
Carolyn Williams, Brookside Road, Newbury, said she is in support of this business. She noted that their pet care services are in her home have been excellent and said their integrity is beyond question.
Ivor Freeman, 434 Old Post Road, Newbury, NH, said his interaction with the applicants’ business when bringing or picking up his dogs has always been positive and added that there has never been any barking until he rings the doorbell.
Bud Hogan, Old Post Road, Newbury, described his need for dog training regarding his 3 ½ year old lab. He said is currently taking his dog for training to Sutton and Contoocook and would welcome the possibility of a local dog training facility. He added that there is no barking at the dog training classes.
Frank Williams, Brookside Road, Newbury, expressed his support of this business. He said the care given by the applicants for his dogs has been consistently excellent.
Emily Stewart, with the Humane Society in Lebanon, NH, said she has visited the applicants’ facility and reports that there is a very high standard of animal care on site and there is no barking in the house.
Mr. Fichter noted that the applicants have made assurances about implementing controlled supervision of the dogs and he asked if the Board of Health provides oversight for a facility such as this. Ms. Stewart said it is the Department of Agriculture. She added that a site inspection depends on the size of the facility. She added that Ms. Ashworth has a very strict intake process regarding the dog’s shots and papers.
Mr. Therrien expressed additional concerns about the number of dogs that this application would permit and the potential for barking on the premises. He also said there would be a diminishment of the value of his property as a result of a facility like this nearby.
There being no further comment from the public, Ms. Holmes closed the public portion of the hearing and the Board went into deliberations.
There was discussion about the concerns regarding cottage industries diminishing the value of surrounding properties. Mr. Fichter noted that a B&B in his neighborhood has not diminished the value of his property. Ms. Holmes said this concern may reflect a belief that there would be a diminishing of the enjoyment of one’s property.
There was significant discussion concerning the potential for dogs barking.
There was discussion concerning the allegation that this business has been operating as a trial run without a special exception. Further discussion centered around who provides oversight on a cottage business in a residential neighborhood.
Ms. Holmes said it is the responsibility of the Code Enforcement Officer to enforce the Board’s decision and any conditions.
There was discussion concerning the maximum number of dogs and cats that would be allowed on the premises at any one time and the absence of a business plan.
There was discussion concerning the fact that if the Board granted the special exception, the applicant is then required to go to the Planning Board for a site plan review and a thorough examination of the business plan would be included in the site plan review.
There was further discussion about the potential for diminishing surrounding property values, the potential for barking dogs to disrupt the neighborhood and the need to encourage appropriate small businesses within Newbury.
Mr. Seidel expressed concern regarding the potential for disruption to the neighborhood by barking dogs. He noted that there is really no control over the barking behavior of the animals. He added that this type of cottage industry cannot be defined by the number of animals alone – there are other factors involved that will have an impact on the enjoyment level of the neighborhood and the residents who live there.
Ms. Holmes suggested that a condition of approval include limiting the number of animals at the facility at any given time.
There was further discussion about the maximum number of animals, the effect of increased traffic on the neighborhood and the potential noise nuisance.
The Board discussed how this business might alter the neighborhood. Mr. Seidel said the issue is not increased traffic; it is how this business can alter the character of the neighborhood.
Ms. Holmes said if the hearing is continued, new information on what constitutes diminishment of property could be requested. Mr. Seidel said it would be helpful to have information on how a business like this is run in a neighborhood setting.
There was further discussion on how to obtain such information.
Ms. Russell made a motion to vote on the request to seek a special exception provided for in Paragraph 5.4.1 to permit the following: a cottage industry to operate a doggie/cat daycare facility out of residence, Newbury Tax Map 022-127-464, at the property of Ashworth-Hafer Trust, 195 Mountain Road, Newbury, NH. In addition, the facility will be limited to a maximum of 16 dogs and eight (8) cats at any time. Mr. Seidel seconded the motion. All in favor.
Ms. Russell voted to Grant the special exception from Paragraph 5.4.1.
Mr. Seidel voted to Deny the special exception from Paragraph 5.4.1 because this use will affect the character of the neighborhood.
Mr. Russell voted to Grant the special exception from Paragraph 5.4.1.
Mr. Fichter voted to Grant the special exception from Paragraph 5.4.1.
Ms. Holmes voted to Grant the special exception from Paragraph 5.4.1.
The special exception was granted by a vote of four to one.
Ms. Holmes advised the applicant that there is a 30-day appeal period in which an abutter or party of interest may appeal the Board’s decision.
Ms. Holmes called for a break at 9:17 p.m.
The meeting resumed at 9:25 p.m.
Notice is herby given that the Newbury Zoning Board of Adjustment will conduct a public hearing on the following proposal on Monday, October 17, 2011 at the Town Office Building at 937 Route 103 in Newbury, NH:
7:45 p.m., Briott LLC/agent: Richard & Bartlett Assoc LLC, for property located on Southgate Road, Newbury, NH, will seek a Variance from the requirements of Paragraph 9.3 of the Newbury Zoning Ordinance to permit the following: Construction of a driveway through a section of steep slopes. Newbury Tax Map 051-694-483.
Mr. Seidel recused himself from this hearing because he is an abutter.
Ms. Holmes told the applicant’s agent, Mark Sargent, that there were just four voting members of the Board for this hearing and asked if he wanted to proceed. Mr. Sargent said yes.
Ms. Holmes introduced the Board and reviewed the hearing process with the applicant and members of the public.
Mr. Sargent presented to the Board. Mr. Sargent is a land surveyor with Richard D. Bartlett & Associates LLC. He said the parcel is 159 acres and the proposed driveway would have an impact on 4,665 square feet of steep slopes on the property. The driveway enters from Southgate Road onto the property. The proposed driveway crosses a wetland before encountering the steep slope.
Mr. Fichter asked if there was any other access point off of Southgate Road onto the property. Mr. Sargent said there is no frontage on any other street. He said there is a steep slope that bisects the property and the driveway has to cross it to access the land.
There being no further questions from the Board, Mr. Sargent addressed Article 16.7 of the zoning ordinance:
16.7.1 The variance will not be contrary to the public interest because: The proposed driveway will be 14 feet in width and impact a 4,665 +/- area. The driveway is designed and will be constructed having a minimum impact on the steep slope area, thus permitting access to this large tract.
16.7.2 Special conditions exist such that literal enforcement of the ordinance
results in unnecessary hardship,
a. There are special conditions in the property that distinguish it from other properties in the area because: The parcel is 159 acres in total area and has only one access point from a town road.
b. The property is different in a meaningful way from other properties in the area because: For the reason stated above as well as the terrain in the proximity of the access point. This property is very unique.
c. The property is burdened more severely by the zoning restrictions because: Access to this property can only be had by crossing a steep slope.
d. Because of the special conditions of the property, the proposed use of the property is reasonable because: The proposed access is to permit forestry practices and future access for a building lot. A denial on the variance would prevent vehicular access to the property.
Mr. Fichter asked about the applicant’s plans for Forestry Practices, particularly the plans for logging. He asked how much timber will be harvested and will the logs have to come out this driveway. Mr. Sargent said yes, the logs would come out of the property via the driveway.
There was discussion concerning the potential for subdividing this parcel of land. Mr. Sargent said the potential for subdivision is very limited. Mr. Fichter noted that the parcel represents one buildable lot.
Ms. Russell said the Board is looking at a driveway, not a road for a subdivision.
Ms. Holmes asked about a culvert for the wetlands and whether it is permanent or temporary. Mr. Sargent said it will be a permanent culvert.
16.7.3 The variance is consistent with the spirit of the ordinance since: The proposed driveway is a very limited use within the steep slope area of this property and will see limited activity.
16.7.4 Substantial justice is done because: The granting of the variance will permit the landowners vehicular access to their property.
16.7.5 The value of surrounding properties will not be diminished because: The proposed construction within the steep slope area is not in close proximity to other properties and should not have an adverse impact on surrounding property values. The proposed driveway is consistent with the surrounding residential properties in that a driveway is necessary to access and utilize the land.
Mr. Sargent said the driveway construction material will be gravel. He said he tried to work within the contours of the steeps slope when designing the location of the driveway.
There was concern among the Board members about water runoff down the driveway. Mr. Sargent said Best Practices Management will be used during construction.
Ms. Holmes asked about the exact use of the property by the applicant – is it for logging or to build a house? Mr. Sargent said logging first and then a possible house.
Mr. Russell expressed concern about the length of the driveway (3,000 feet). Mr. Sargent said the length is needed to get up to usable land for a logging yard.
Ms. Russell expressed concern over the intent of the use of the land – logging and/or building a house. She added that the location of the possible house is not clear.
Ms. Holmes said she spoke with the applicant and asked about his intent to put houses on the property and the applicant said he had no intention of doing so.
There being no further questions from the Board, Ms. Holmes opened the public portion of the hearing.
Ken Dustin, 88 Southgate Road, Newbury, expressed concern over the potential water runoff created by constructing a 3,000 foot driveway. He said the last two loggers on the property staged the logging yards in the back portion of the property. He expressed concern about the driveway affecting a sensitive wetland area. He maintained that past loggers were able to log the property without constructing a 3,000 foot driveway.
Dennis McCornish, an abutter, expressed concern regarding the potential for water runoff from the proposed driveway into his driveway.
Deborah Sanborn, 116 Southgate Road, Newbury, questioned the grading needed to accommodate logging trucks on the driveway.
There was further discussion about the potential problem of water runoff and the past history of the property.
Richard and Sharon Rogers, 54 Southgate Road, Newbury, said they gave the applicant a 10 foot easement when they purchased their property and said the applicant told them it was only for the maintenance of the driveway.
Mr. McCornish said he liked the driveway as it is designed. Mr. Rogers said he has no problem with the driveway as long as the water runoff is handled.
Mr. Fichter said there is no engineering design for the driveway. Ms. Holmes agreed and added that an engineering plan is needed if the road is for vehicular use. She added that if the applicant gets a Conditional Use Permit from the Planning Board, then he must return to the ZBA with an engineering plan.
Mr. Fichter agreed, adding the plan should show where the water is going and how it will be handled. Ms. Russell agrees.
There being no further comment from the public, Ms. Holmes closed the public portion of the hearing and the Board went into deliberations.
Ms. Holmes proposed a continuance of the hearing until November 14, 2011 for the additional information contained in an engineering plan of the proposed driveway.
With the Board’s nod of approval, Ms. Holmes reopened the public comment portion of the hearing.
Mr. Dustin asked if the engineering report would address the steep slopes. Mr. Fichter said the engineering plan will describe how the water from the steep slope and the driveway will be handled and where it will go. Mr. Dustin questioned why further exploration was necessary given the severity of the steep slopes on the property.
Ms. Holmes closed the public portion of the hearing and called for a motion.
Mr. Fichter made a motion to continue until November 14 at 7:15 p.m. the request for a variance from the requirements of Paragraph 9.3 of the Newbury Zoning ordinance to permit the following: Construction of a driveway through a section of steep slopes. Ms. Russell seconded the motion. All in favor.
Mr. Fichter voted to Continue until November 14, 2011 at 7:15 p.m.
Mr. Russell voted to Continue until November 14, 2011 at 7:15 p.m.
Ms. Russell voted to Continue until November 14, 2011 at 7:15 p.m.
Ms. Holmes voted to Continue until November 14, 2011 at 7:15 p.m.
Mr. Russell made a motion to adjourn. Ms. Russell seconded the motion. All in favor.
The meeting adjourned at 10:32 p.m.
Respectfully submitted,
Meg Whittemore
Recording Secretary
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